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Cian Chand Vs. Urmila Kumari - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Revision Appeal No. 23 of 1978
Judge
Reported inILR1980Delhi98
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 482
AppellantCian Chand
RespondentUrmila Kumari
Advocates: N.S. Safaya, Adv
Excerpt:
.....wherever mentioned in the petition before the sessions court, to be substituted by the word 'revision'. the petition, thereafter, was directed to be heard on merits as a merits as a revision. (1969 j & k relied on). - - it appears that although gian chand had been initially contesting those proceedings, he subsequently failed to make appearance and, thereforee, the court- decided the matter in his absence. that cumbersome mode was clearly available to him......the trial court awarded a monthly maintenance of rs. 200 in her favor and against her husband, gian chand. it appears that although gian chand had been initially contesting those proceedings, he subsequently failed to make appearance and, thereforee, the court- decided the matter in his absence. according to gian chand he was unavoidably delayed at chandigarh and had sent a telegram seeking adjournment. this, however, was not allowed. the trial was, thereforee, concluded, and after allowing a short adjournment and hearing arguments of the petitioner the aforesaid maintenance was awarded. the relevant order was dated 29th november, 1976.(2) against this order gian chand moved an appeal before the additional sessions judge on 4th january, 1977. notice thereof was directed to be issued.....
Judgment:

D.R. Khanna, J.

(1) On an application moved by Smt. Unnila Kumari under section 125 of the Code of Criminal Procedure 1973, the trial court awarded a monthly maintenance of Rs. 200 in her favor and against her husband, Gian Chand. It appears that although Gian Chand had been initially contesting those proceedings, he subsequently failed to make appearance and, thereforee, the court- decided the matter in his absence. According to Gian Chand he was unavoidably delayed at Chandigarh and had sent a telegram seeking adjournment. This, however, was not allowed. The trial was, thereforee, concluded, and after allowing a short adjournment and hearing arguments of the petitioner the aforesaid maintenance was awarded. The relevant order was dated 29th November, 1976.

(2) Against this order Gian Chand moved an appeal before the Additional Sessions Judge on 4th January, 1977. Notice thereof was directed to be issued tO Smt. Urmila for 4th February, 1977. It is not clear from the record as to what happened on 4th February, 1977 as in the meanwhile, the appeal was transferred to the court of Smt. S. Duggal, Additional Sessions Judge, New Delhi. Gian Chand was directed to appear in that court on 7th February, 1977. On this latter date he moved an application to the effect that due to inadvertence he had filed that appeal, and instead a revision should have been moved. He, thereforee, prayed that the word 'appeal' may be substituted by the word 'revision' in the said memo of appeal, and the same be treated as a revision.

(3) Notice of this application as also of the main appeal, was given to Smt. Urmila Kumari who on appearance contested the Substitution of the word 'appeal' by 'revision' in, the memo of appeal already presented. The learned Additional Sessions Judge after hearing both the sides, held by the impugned order that the appeal could not be treated as a revision. It was noted that under section 401(5) of the Code of Criminal Procedure, a provision had been made for treatment of revision as appeal. However, there was no corresponding provision which permitted the treatment of the appeal as revision. It was further fthat the Code of Criminal Procedure did not vest any inherent power in the Sessions Court. That power was available to the High Court only under section 482. The order of the learned Additional Sessions Judge shows that from the side of Gian Chand reference had been made to a decision of the Jammu & Kashmir High Court, reported 1969 J & K 105, wherein it was observed that where it was found that appeal was not maintainable it could be treated as 3 revision. These observations were treated as a mere passing reference as it was felt that perhaps the High Court had in the exercise of its inherent powers, held accordingly.

(4) It is in these circumstances that Gian Chand feeling aggrieved, has moved the present revision before this Court. None, however, has appeared from the side of Smt. Urmila Kumari at the time of hearing.

(5) No attempt has been made from the side of the petitioner to plead in this Court that against the maintenance order of the trial court an appeal could lie before the Sessions Judge. Rather it is conceded that the proper remedy was by way of revision. It has, however, been contended that it was by sheer mistake or inadvertence that the revision which was filed before the Sessions Court, was described as an appeal. When later, this mistake was realised an application was moved for substitution of the word 'revision' wherever the word 'appeal' had earlier occurred in the petition.

(6) I find that on 7th February, 1977 when Gian Chand moved the application for getting the word 'revision' substituted for the word 'appeal', the limitation for filling revision was still alive. He could have thus simply withdrawn the appeal or got that rejected as not maintainable, and filed the requsite revision. That cumbersome mode was clearly available to him. In case he attempted to avoid multiplicity of proceedings and sought amendment of the petition by getting the word 'appeal' substituted by 'revision', there was no impropriety involved nor the respondent could be held to be gravely prejudiced. An error committed on a legal point when no valuable rights to the other party in the form of expiry of limitation had accrued, should have been allowed to be rectified. The Jammu & Kashmir High Court had plainly held that permissible. In any case this Court in the exercise of inherent powers available under section 482, allows that appeal to be treated as a revision by allowing the word 'appeal' wherever mentioned in the petition before the Sessions Court, to be substituted by the word 'revision'. That would prevent the abuse of process of court and otherwise would secure the ends of justice. It need hardly be said that an order of grant of maintenance is of far reaching consequence. It opens recurring monthly liability for indefinite time. At the same time it can provide material evidence in any proceedings that may be taken under the Hindu Marriage Act.

(7) I, thereforee, while allowing this revision restore the matter to the learned Additional Sessions Judge, Delhi, for allowing the word 'appeal' in the petition before her to be substituted by the word 'revision'. That petition thereafter should be heard on merits as a revision.

(8) The petitioner is directed to appear before the learned Additional Sessions Judge on January 4, 1980.


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